Thursday, October 14, 2010

More Musings on Ayodhya

Continuing our coverage of the Ayodhya decision, we are pleased to feature this guest post by Mathew John.

Reading Aditya's affirmation of the Ayodhya judgement I felt I must alsowade in with a few more preliminary comments. Opinions on the judgement are divided - Some like Rajeev Dhavan dismiss it as the summary justiceof a panchayat. Others like Aditya and Pratap Mehta think that it might contain remarkable judicial statesmanship. Only time will tell who isright but given the sheer size of this monster of a judgement this isnot likely to be any time soon. In the meanwhile nervous that much ofwhat I say might be proved wrong by closer reading of the judgement, I want to think aloud about how we should approach and read this judgement.

Reading through the case summaries it does seem that the courts havebrokered a remarkable compromise by converting a suit claimingdeclaratory relief into a partition suit and divided the contested property by metes and bounds. I start by focusing on what Aditya terms'the elevation of easementary rights into that of property'. I think this puts in perspective the kind of shift that the legal process haswrought in spaces like the Babri Masjid-Janmasthan complex.

Irrespective of the supposed depredations of Babur's general, it notdisputed that the space was being resorted to by different parties.However the trial court deciding the dispute in 1885 seemed to think that granting the Mahant Raghubar Das any right to build a temple on the structure "would amount to laying down foundation for riot between the two communities." (p. 19 Khan J.). However this seems to fly in the faceo f the facts because the various communities did occupy the space together without breaking out into riots. It is true that there wered isputes, its is true that these disputes also resulted in violence anddeath but by granting the Muslim Mutavali exclusive property rights overthe property the court's resolution of the dispute in 1885 seems to havebeen premised on the /absolute separation /of the communities rather than to face up to an immediate problem of conflict. I wonder if thepresent decision reaffirms the same kinds of resolution albeit in changed circumstances?

Perhaps the present resolution was the best that the judges could have brokered. Perhaps the situation is so vitiated that the communities cannot occupy the space unless their rights are clearly marked, separated and partitioned. However this then has to be done by preserving the integrity of the law. A friend of mine had asked if would it be possible to have arrived at the present resolution if the mosque was not pulled down? I suspect not, though the other parties wouldperhaps have been able to assert their right of use over the property. Therefore, I'm wondering if it is possible to think of a resolution of thedispute by granting the superior title of the Mutavali, which he presumably did have until 1949, while yet protecting the broader rights of use of the other claimaints? In this way the integrity of law(adverse possession in favour of the caretaker of the mosque) is protected while at the same time protecting the easmentary and other user rights that parties have in the property.

On another note there are many obvious problems with the introduction of the gods into history. I raise one aspect of this problem which arises from Justice Sharma's finding that the disputed site is the birthplace of Lord Ram. I am not at all clear why the question of birthplace wasrelevant to the case but it is important to note in this connection thatit is not 'Lord Ram' (who can manifest in many forms) but a particular diety 'Bhagwan Sri Ram Lala Virajman' who was a party to this dispute. Ido not know much about the nuances of the juristic personality of idolsbut it is an interesting oddity of Anglo-Hindu jurisprudence (debutter property law if I am not mistaken) that dieties are considered perpetual minors and represented in courts by their guardians, shebaits, nextsfriends and so on. However in all these cases it is not the divineentity 'Lord Ram' in whose name property is endowed but a particular idol represented by his next friend. I wonder if this distinction is reflected in the judgement even though the summary seems to suggest otherwise?

Lastly, it is popularly considered unusual and objectionable to have judges dabbling in theological matters but in the recent past scholars (like for instance Pratap Mehta "On the Possibility of Religious Pluralism,") have increasingly begun to point out that even in contemporary secular states the law and the courts make extensive claims on religion, even to the point of deciding what is and is not religion. In this context the task of scholars is to fathom the structure of thedemands that politics makes on religion and not only to raise normative objections to such demands. Perhaps this judgement will tell us more about the manner in which our law and politics makes claims on our religious traditions.
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